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HQ 962879




March 16, 2000

CLA-2 RR:CR:GC 962879K

CATEGORY: CLASSIFICATION

TARIFF NO.: 0303.79.40

Port Director
U.S. Customs Service
1624 E. Seventh Ave., Ste.101
Tampa, Florida 33605

RE: Protest 1803-96-100230 (and 100150); Mackerel; Surety

Dear Port Director:

The following is our response to the referral by your office, dated May 10, 1999, of the request for further review of the above-referenced protest filed by a surety.

FACTS:

The consumption entries covering the imported merchandise were liquidated on May 24, 1996, under the provision for other fish, frozen, excluding fish fillets and other fish meat of heading 0304, in subheading 0303.79.40, Harmonized Tariff Schedule of the United States (HTSUS) (1995), with duty at the general rate of 0.9 cents per kg. Protest 1803-96-100150, was timely filed under 19 U.S.C. 1514 on August 15, 1996, by the Customs broker representing the importer. The protestant requested reliquidation of the entry under the provision for other fish, frozen, mackerel, Scomber, in subheading 0303.74.00, HTSUS (1995), free of duty.

Demand was made upon the surety’s bond for duties. Duties were paid and protest 1803 -96-100130 was timely filed under 19 U.S.C. 1514(c)(2). This is the protest that is under further review. The same documentation submitted in the importer’s protest was also filed in the surety’s protest. No new information was submitted by the surety to support the claimed classification.

In reply to a question by Customs on Customs Form 28, dated December 21, 1995, the importer stated that “The scientific name of the King Fish (Seer Fish) is ‘ scomberomorus commerson’ and enclosed a copy of the same fish. The Trade name “Seer Fish (Spanish mackerel) and the Scientific Name “Scomberomorus-commerson” appear under the picture. Based upon the information submitted, Customs informed the importer on Customs Form 29, dated January 26, 1996, that the mackerel species was not classified under subheading 0303.74.00, HTSUS, and liquidated the entries under subheading 0303.79.40, HTSUS.

ISSUE:

Whether the fish is of the species included in the coverage of subheading 0303.74.00, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

Subheading 0303.74.00, HTSUS, provides for fish, frozen, excluding fish fillets and other fish meat of heading 0304, other fish, excluding livers and roes; mackerel (Scomber scombrus, Scomber australasicus, Scomber japonicus).

The Multilingual Dictionary of Fish and Fish Products identifies “mackerel” as certain species of the genus Scomber. In fact, this genus consists of three primary species,--viz., Scomber scombrus, the Atlantic mackerel, Scomber japonicus, the Chub mackerel or Pacific mackerel, and Scomber australasicus, the Blue mackerel.

The term “Kingmackerel,” according to the Multilingual Dictionary, refers to various species of the genus Scomberomorus. Among the species listed as Kingmackerel, are the following species, by their common and scientific names:
a) Kingfish, Scomberomorus cavalla. b) Sierra, Scomberomorus sierra. c) Seer, Scomberomorus commersoni. d) Cero, Scomberomorus regalis. e) Spanish mackerel, Scomberomorus maculatus. f) Monterey Spanish mackerel Scomberomorus concolor. g) W. African Spanish mackerel Scomberomorus tritor. h) Japanese Spanish mackerel Scomberomorus niphonius. i) Korean mackerel Scomberomorus semifasciatus j) Indian Spanish mackerel Scomberomorus guttatus. k) School mackerel Scomberomorus queenslandicus

Subheading 0303.74.00, HTSUS specifically covers the three species of the genus Scomber. It does not cover the species of the genus of Scomberomorous. Accordingly, the subject fish is classified by virtue of GRI 1 as other fish, frozen, excluding fish fillets and other fish meat of heading 0304, in subheading 0303.79.40, HTSUS.

HOLDING:

Frozen mackerel, excluding fish fillets and other fish meat of heading 0304, and not of the species of Scomber scombrus, Scomber australasicus, and Scomber japonicus, is classified as other fish, frozen, excluding fish fillets and other fish meat of heading 0304, in subheading 0303.79.40, HTSUS.

You are directed to deny in full the surety’s protest 1803-96-100230.

You are also directed to deny in full the importer’s protest 1803.96-100150.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels. .

Sincerely,

John Durant, Director

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